PART
II
LICENSING
AND REGULATION
RULE
I
PARTICIPATION OF THE PRIVATE SECTOR IN THE
OVERSEAS EMPLOYMENT PROGRAM
Section
1. Qualifications.
Only those who possess the following qualifications may be
permitted to engage in the business of recruitment and
placement of Filipino workers:
a.
Filipino citizens, partnerships or corporations at
least seventy five percent (75%) of the authorized capital
stock of which is owned and controlled by Filipino citizens;
b.
A minimum capitalization of Two Million Pesos
(P2,000,000.00) in case of a single proprietorship or
partnership and a minimum paid-up capital of Two Million Pesos
(P2,000,000.00) in case
of a corporation; Provided that those with existing
licenses shall, within four years from effectivity hereof,
increase their capitalization or paid up capital, as the case
may be, to Two Million Pesos (P2,000,000.00) at the rate of
Two Hundred Fifty Thousand Pesos (P250,000.00) every year.
c.
Those not otherwise disqualified by law or other
government regulations to engage in the recruitment and
placement of workers for overseas employment.
Section
2. Disqualification. The following are not qualified to engage in the business of
recruitment and placement of Filipino workers overseas:
a.
Travel agencies and sales agencies of airline companies;
b.
Officers or members of the Board of any corporation or members
in a partnership engaged in the business of a travel agency;
c.
Corporations and partnerships, when any of its
officers, members of the board or partners, is also an
officer, member of the board or partner of a corporation or
partnership engaged in the business of a travel agency;
d.
Persons, partnerships or corporations which have
derogatory records, such as but not limited to the following:
1)
Those certified to have derogatory record or
information by the National Bureau of Investigation or by the
Anti-Illegal Recruitment Branch of the POEA;
2)
Those against whom probable cause or prima facie
finding of guilt for illegal recruitment or other related
cases exists;
3)
Those convicted for illegal recruitment or other
related cases and/or crimes involving moral turpitude; and
4)
Those agencies whose licenses have been previously
revoked or cancelled by the Administration for violation of RA
8042, PD 442 as amended and their implementing rules and
regulations as well as these rules and regulations.
All applicants for issuance/renewal of license shall be
required to submit clearances from the National Bureau of
Investigation and Anti-illegal Recruitment Branch, POEA,
including clearances for their respective officers and
employees.
e.
Any official or employee of the DOLE, POEA, OWWA, DFA
and other government agencies directly involved in the
implementation of R.A. 8042, otherwise known as Migrant
Workers and Overseas Filipino Act of 1995 and/or any of
his/her relatives within the fourth civil degree of
consanguinity or affinity; and
f.
Persons or partners, officers and Directors of
corporations whose licenses have been previously cancelled or
revoked for violation of recruitment laws.
RULE
II
ISSUANCE
OF LICENSE
Section
1. Requirements
for Licensing. Every
applicant for license to operate a private employment agency
shall submit a written application together with the following
requirements:
a.
A certified copy of the Articles of Incorporation or of
Partnership duly registered with the Securities and Exchange
Commission (SEC), in the case of corporation or partnership or
Certificate of Registration of the firm or business name with
the Department of Trade and Industry (DTI), in the case of a
single proprietorship;
b.
Proof of financial capacity: In the case of a single
proprietorship or partnership, verified income tax returns of
the proprietors or partners for the past two (2) years and a savings
account certificate showing a maintaining balance of not less than
P500,000.00, provided that the applicant should submit an
authority to examine such bank deposit.
c.
In the case of a newly organized corporation, savings
account certificate showing a maintaining balance of not less
than P500,000.00 with authority to
examine the same. For an existing corporation, submission of a
verified financial statement, corporate tax returns for the
past two (2) years and savings account certificate
showing a maintaining balance of not less than
P500,000.00 with the corresponding authority to examine such
deposit.
d.
Proof of marketing capability
1.
A duly executed Special Power of Attorney and/or a duly
concluded. Recruitment/ Service Agreement;
2.
Manpower request(s) or visa certification from new
employer(s)/ principal(s) for not less than one hundred
(100) workers; and
3.
Certification from Pre-Employment Services Office of
POEA on the existence of new market.
e.
Clearance of all members of the Board of Directors, partner,
or proprietor of the applicant agency from the National Bureau
of Investigation (NBI) and other government agencies as may be
required; appropriate clearance in case of persons with
criminal cases; provided that where the member or partner
concerned is a foreigner, clearance from his country of origin
shall be required.
f.
A verified undertaking stating that the applicant:
1. Shall select
only medically and technically qualified recruits;
2.
Shall assume full and complete responsibility for all claims
and liabilities which may arise in connection with the use of
the license;
3.
Shall assume joint and solidary liability with
the employer for all claims and liabilities which may arise in
connection with the implementation of the contract, including
but not limited to payment of wages, death and disability
compensation and repatriations;
4.
Shall guarantee compliance with the existing
labor and social legislations of the Philippines and of the
country of employment of the recruited workers;
5.
Shall assume full and complete responsibility
for all acts of its officials, employees and representatives
done in connection with recruitment and placement;
6.
Shall negotiate for the best terms and
conditions of employment;
7.
Shall disclose the full terms and conditions of
employment to the applicant workers;
8.
Shall deploy at least 100 workers to its new markets
within one (1) year from the issuance of its license;
9.
Shall provide orientation on recruitment procedures,
terms and conditions and other relevant information to its
workers and provide facilities therefor; and
10.
Shall repatriate the deployed workers and his personal
belongings when the need arises.
For
the purpose of compliance with item (1), the agency may
require the worker to undergo trade testing and medical
examination only after the worker has been pre-qualified for
employment.
g.
In case of corporation or partnership, verified
undertaking by its officers, directors, partners that they
will be jointly and severally liable with the company over
claims arising from employer-employee relationship.
h.
Individual income tax return of the proprietor,
partners, stockholders/incorporators, as the case may be, for
the past two (2) years.
i.
Proof of possession by the sole proprietor,
partner or chief executive officer, as the case may be, of a
bachelor’s degree and three years business experience.
j.
List of all officials and personnel involved in the
recruitment and placement, together with their appointment,
bio-data and two (2) copies of their passport-size pictures as
well as their clearances from the National Bureau of
Investigation and the Anti-illegal Recruitment Branch of the
Administration.
k.
Copy of contract of lease or proof of building
ownership, indicating the office address, providing for an
office space of at least one hundred (100) square meters.
l.
Proof of publication of notice of the application with
the names of the proprietor, partners, incorporators and
officers.
m.
Certificate of attendance of owner and/or chief executive
officer in a pre-application seminar conducted by the
Administration.
Only
applications with complete supporting documents shall be
processed.
Section
2. Payment of filing fee. Upon receipt of an application with
complete requirements, the Administration shall require
payment of a non-refundable filing fee of P10,000.00 and
submission of proof of payment thereof.
Section
3. Action upon the application. Within fifteen (15) calendar
days from receipt of an application with complete requirements
including proof of payment of the filing fee of P10,000.00,
the Administration shall evaluate the pertinent documents,
inspect the offices and equipment and determine whether or not
to grant or deny the application. Denial of an application
will result in the forfeiture of the filing fee.
Section
4. Payment of Fees and Posting of Bonds. Upon approval of the
application, the applicant shall pay a license fee of
P50,000.00. It shall submit an Escrow Agreement in the amount
of P1,000,000.00, confirmation of escrow deposit with an
accredited reputable bank and a surety bond of P100,000.00
from a bonding company acceptable to the Administration and
accredited with the Insurance Commission.
Agencies
with existing licenses shall, within
four years from effectivity hereof, increase their Escrow
Deposit to One Million Pesos .
The bonds and escrow shall answer for all valid and legal
claims arising from violations of the conditions for the grant
and use of the license, and/or accreditation and contracts of
employment. The bonds and escrow shall likewise guarantee
compliance with the provisions of the Code and its
implementing rules and regulations relating to recruitment and
placement, the Rules of the Administration and relevant
issuances of the Department and all liabilities which the
Administration may impose. The surety bonds shall include the
condition “that notice to the principal is notice to the
surety and that any judgment against the principal in
connection with matters falling under POEA’s/NLRC’s
jurisdiction shall be binding and conclusive on the surety.
The surety bonds shall cover the validity period of the
license.
Section
5. Provisional License. Applicants for new license shall be
issued a provisional license which shall be valid for a
limited period of one (1) year within which the applicant
should be able to comply with its undertaking to deploy 100
workers to its new principal. The license of a complying
agency shall be upgraded to a full license entitling them to
another three years of operation. Non-complying agencies will
be notified of the expiration of their license.
Section
6. Validity of
the License. Except
in case of a provisional license, every license shall be valid
for four (4) years from the date of issuance unless sooner
cancelled, revoked or suspended for violation of applicable
Philippine law, these rules and other pertinent issuances. Such
license shall be valid only at the place/s stated therein and
when used by the licensed person, partnership or corporation.
Section
7. Non-Transferability of License.
No license shall be transferred, conveyed or assigned
to any person, partnership or corporation. It shall not be
used directly or indirectly by any person, partnership or
corporation other than the one in whose favor it was issued.
In
case of death of the sole proprietor and to prevent disruption
of operation to the prejudice of the interest of legitimate
heirs, the license may be extended upon request of the heirs,
to continue only for the purpose of winding up business
operations.
Section
8. Change of Ownership/Relationship of Single Proprietorship
or Partnership. Transfer or change of ownership of a single
proprietorship licensed to engage in overseas employment shall
cause the automatic revocation of the license.
A
change in the relationship of the partners in a partnership
duly licensed to engage in overseas employment which
materially interrupts the course of the business or results in
the actual dissolution of the partnership shall likewise cause
the automatic revocation of the license.
Section
9. Upgrading of
Single Proprietorship or Partnerships.
License holders which are single proprietorships or
partnerships may, subject to the guidelines of the
Administration, convert into corporation for purposes of
upgrading or raising their capabilities to respond adequately
to developments/changes in the international labor market and
to enable them to better comply with their responsibilities
arising from the recruitment and deployment of workers
overseas.
The
approval of merger, consolidation or upgrading shall
automatically revoke or cancel the licenses of the single
proprietorships, partnerships or corporations so merged,
consolidated or upgraded.
Section
10. Derogatory
Record After Issuance/Renewal of License. The license of a
single proprietorship or a partnership shall be suspended
until cleared by the Administration should any derogatory
record be found to exist against the single proprietorship or
any or all of the partners, as the case may be. The
appointment of any officer or employee of any licensed agency
may be cancelled or revoked at any time with due notice to the
agency concerned, whenever said officer or employee is found
to have any derogatory record, as herein contemplated.
Section
11. Appointment/Change of Officers and Personnel.
Every appointment of agents or representatives of a
licensed agency shall be subject to prior approval or
authority of the Administration. The acknowledgment or
approval may be issued upon submission of or compliance with
the following:
a.
proposed appointment or special power of attorney;
b.
clearances of the proposed representative or agent from
National Bureau of Investigation (NBI)/Anti-Illegal
Recruitment Branch, POEA; and
c.
sworn or verified statement by the designating or
appointing person or company assuming full responsibility for
all acts of the agent or representative done in connection
with the recruitment and placement of workers.
Every
change in the composition of the Board of Directors of a
corporation, appointment or termination of officers and
personnel shall be registered with the Administration within
thirty (30) calendar days from the date of such change. The
agency shall be required to submit the minutes of proceedings
duly certified by SEC in case of election of new members of
the Board of Directors with their bio-data, ID pictures and
clearances.
The
Administration reserves the right to deny the acknowledgment
or appointment of officers, employees and representatives who
were directly involved in recruitment irregularities.
Section
12. Publication of Change of Directors/Other Officers and
Personnel/ Revocation or Amendment of Appointment of
Representatives. In addition to the requirement of
registration with and submission to the Administration, every
change in the membership of the Board of Directors,
termination for cause of other officers and personnel,
revocation or amendment of appointment of representatives
shall be published at least once in a newspaper of general
circulation, in order to bind third parties. Proof of such
publication shall be submitted to the Administration.
Section
13. Transfer of
Business Address. Any transfer of business address shall be
effected only with prior authority or approval of the
Administration. The approval shall be issued only upon formal
notice of the intention to transfer with the following
attachments:
a.
In the case of a corporation, a Board Resolution duly
registered with the SEC authorizing the transfer of business
address; and
b.
Copy of the contract of lease or proof of building
ownership.
The
new office shall be subject to the regular ocular inspection
procedures by duly authorized representatives of the
Administration.
A
notice to the public of the new address shall be published in
a newspaper of general circulation.
Section
14. Establishment of additional offices. Additional offices
may be established subject to the prior approval of the
Administration.
Section
15. Conduct of Recruitment Outside of Registered Office. No
licensed agency shall conduct any provincial recruitment, jobs
fair or recruitment activities of any form outside of the
address stated in the license or approved additional office(s)
without first securing prior authority from the
Administration.
Section
16. Renewal of License. An agency shall submit an application
for the renewal of its license on or before its expiration.
Such application shall be supported by the following
documents:
a.
Surety bond duly renewed or revalidated;
b.
Renewed escrow agreement in the amount of P1,000,000.00
with a commercial bank to primarily answer for valid and legal
claims of recruited workers as a result of recruitment
violations or money claims;
c.
Audited financial statements for the past two years
with verified corporate or individual tax returns. In case the
equity of the agency is below the minimum capitalization
requirement, it shall be given thirty (30) days from release
of the renewed license to submit proof(s) of capital infusion,
such as SEC certification of such infusion or bank
certification corresponding to the amount infused and
treasurer’s affidavit duly received by the SEC. Otherwise,
the license shall be suspended until it has complied with the
said requirement;
d.
Clearances from the National Bureau of Investigation
and the Anti-illegal Recruitment Branch for the Board of
Directors and responsible officers; and
e.
Other requirements as may be imposed by the
Administration.
Section
17. Monitoring Compliance with Conditions of License. The
Administration shall monitor the compliance of the agencies
with their undertakings in connection with the issuance or
renewal of the license. Appropriate sanctions shall be imposed
for non-compliance with any of their undertakings.
Section
18. Non-expiration of License. Where the license holder has
made timely and sufficient application for renewal, the
existing license shall not expire until the application shall
have been finally determined by the Administration. For this
purpose, an application shall be considered sufficient if the
applicant has substantially complied with the requirements for
renewal.
Section
19. Action on Renewal of License. Within forty eight (48)
hours from receipt of the application for renewal with the
complete requirements, the Administration shall undertake
evaluation and inspection and determine the grant or denial of
the application. Licenses of agencies which fail to meet the
requirements set by the Administration shall not be renewed.
Only
applications for renewal submitted with complete requirements
shall be processed.
Section
20. Late Filing
of Renewal. Any agency which failed to file an application for
renewal of license may be allowed to renew within thirty (30)
days from expiry thereof but shall pay a fine of P10,000.00.
Section
21. Escrow Deposit as Garnished. As soon as an Order or Notice
of Garnishment is served upon the Bank, and the same is
correspondingly earmarked, the deposit in escrow of an agency
shall no longer be considered sufficient. The Administration
shall forthwith serve the agency a notice to replenish its
escrow deposit.
Section
22. Replenishment of Surety Bonds/Deposit in Escrow. Within
fifteen (15) calendar days from date of receipt of notice from
the Administration that the bonds/deposit in escrow, or any
part thereof had been garnished, the agency shall replenish
the same. Failure to replenish such bonds/deposit in escrow
within the said period shall cause the suspension of the
license.
Section
23. Release of
Deposit in Escrow. A licensed agency which voluntarily
surrenders its license shall be entitled to the release of the
deposit in escrow, only after posting a surety bond of similar
amount valid for four (4) years from expiration of license and
submission of the necessary clearances from the National Labor
Relations Commission (NLRC) and the Administration.
Section
24. Classification, Ranking and Incentives. The Administration
shall undertake the classification and ranking of agencies. In
recognition of their exemplary performance, the Administration
shall issue guidelines for entitlement of agencies to schemes
for incentives and rewards such as extension of validity of
license, express processing and in-house documentation
RULE
III
INSPECTION OF AGENCIES
Section
1. Inspection for Purposes of Establishment/Transfer of
Office. Before issuance of a license, the Administration shall
conduct an inspection of the premises and facilities including
the pertinent documents of the applicant. Inspection shall
likewise be conducted on the new premises in case of transfer
of office.
Section
2. Routine/Regular Inspection. All agencies shall be subject
to periodic inspection of offices, studios or pre-departure
orientation seminar (PDOS) venues by the Administration to
determine compliance with existing rules and regulations.
Section
3. Spot Inspection. Inspection may be conducted by the
Administration upon receipt of a complaint or report of
violation of existing rules and regulation.
Section
4. Authority to Inspect. An authority to inspect shall be
issued by the Administration before any inspection may be
conducted.
Such
authority, stating the purpose and subject of inspection,
shall be presented to the agency before inspection.
Section
5. Scope of Inspection. Depending on the purpose of
inspection, the Administrator or his duly authorized
representative may inspect the premises and require the
presentation of necessary documents, records and books of
accounts of the agency and examine the same.
Section
6. Inspection Program and Procedures. The Administration shall
conduct inspection in accordance with the Inspection Program
and Procedures of the POEA.
Section
7. Violations Found in the Course of Inspection. Violations
found in the course of inspection such as non-compliance with
the existing laws, rules and regulations, shall be grounds for
the imposition of appropriate sanction or for the denial of
application for issuance or renewal of license. A copy of the results of inspection shall be endorsed to the
appropriate unit for the conduct of necessary proceedings.
RULE
VI
RECRUITMENT OUTSIDE REGISTERED
OFFICE
Section 1.
Conduct of Recruitment Outside Registered Office.
Except for recruitments conducted under the Public Employment
Service Office Act of 1999 (RA 8759), no licensed agency shall
conduct recruitment activities of any form outside of the
address stated in the license or acknowledged additional
office(s) without securing prior approval from the
Administration. A
special recruitment authority shall be issued upon compliance
with the documentary requirements prescribed by the
Administration.
Section 2. Venue.
Recruitment activities outside the registered office of
the agency shall be conducted only at venues authorized by the
Administration, and shall be supervised by the Administration,
the DOLE, or the appropriate local government unit.
Section 3. Validity of
Special Recruitment Authority. The special authority granted
to an agency to conduct recruitment activities outside of its
registered office based on its manpower requirements shall be
valid for a specified period unless otherwise extended,
modified or revoked by this Administration or any of its
regional offices concerned.
Section 4. Cancellation
of Authority. The Administration reserves the right to cancel
a special recruitment authority issued to an agency for
violation of the conditions set in the authority such as
venue, representative, duration and compliance with these
rules.
Section 5. Submission
of Report. The
agency shall submit a terminal report to the Administration
within thirty (30) days from termination of the recruitment
activity conducted outside its registered office. No
subsequent authority shall be issued until the agency has
submitted its report.
RULE
VII
ADVERTISEMENT FOR OVERSEAS JOBS
Section 1.
Advertisement for Actual Job Vacancies. Licensed
agencies may advertise for actual job vacancies without prior
approval from the Administration if covered by
manpower requests of registered/accredited foreign
principals and projects.
The advertisements shall indicate the following
information:
a.
Name, address and POEA license number of the agency;
b.
Work site of prospective principal/project;
c.
Skill categories and qualification standards; and
d.
Number of available positions
Section 2.
Advertisement for Manpower Pooling. Licensed agencies may
advertise for manpower pooling without prior approval from the
Administration subject to the following conditions:
a.
The advertisement should indicate in bold letters that
it is for manpower pooling only and that no fees will be
collected from the applicants; and
b.
The advertisement indicates the name, address and POEA
license number of the agency, name and worksite of the
prospective registered/accredited principal and the skill
categories and qualification standards.
Section 3. Foreign
Advertisers for Overseas Job Vacancies.
Foreign principals/employers who wish to advertise overseas
job vacancies may do so only through a POEA-licensed agency or
through the Administration.
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